PACC Committee Report

Pursuant to Standing Order 108(3)(e), the Standing Committee on Public Accounts has the honour to present its

NINTH REPORT

The Standing Committee on Public Accounts has considered actions taken by the Canadian Human Rights Commission in response to audit findings reported in Chapter 10 of the September 1998 Report of the Auditor General of Canada and has agreed to report the following:

INTRODUCTION

On 27 October 1998, the Committee met to review the results of an audit of the Canadian Human Rights Commission and the Human Rights Tribunal Panel. Chief Commissioner Michelle Falardeau-Ramsay appeared as a witness on behalf of the Canadian Human Rights Commission.

Following its October 1998 meeting, the Committee tabled a report in the House of Commons on 9 February 1999 containing its conclusions and recommendations. Of the Committee’s nine recommendations, seven were addressed exclusively to the Canadian Human Rights Commission. The remaining two recommendations were directed to Treasury Board Secretariat and the Government.

The Chief Commissioner of the Canadian Human Rights Commission responded to the Committee’s request for an action plan in a letter addressed to the Committee Chair on 30 April 1999. The then-Minister of Justice, the Hon. Anne McLellan, provided the comprehensive response on behalf of the Government in a letter sent in July 1999.

In normal circumstances, the Office of the Auditor General would conduct a follow-up audit within three years of the original audit. Follow-up audits generally examine the implementation of the Committee’s recommendations that the audited entity has agreed to. This provides the Committee with assurance that audited entities have met commitments (or not, as the case may be). However, in this instance, the Chief Commissioner had announced that she would be retiring shortly. As a consequence, the Office of the Auditor General decided to delay a follow-up audit until Mrs. Falardeau-Ramsay’s successor has had an opportunity to become familiar with her new responsibilities.

In light of the postponement of a follow-up audit, the Committee decided to meet with Mrs. Falardeau-Ramsay before her retirement in order to assess the progress being made by the Commission in implementing the Committee’s 1998 recommendations.

BACKGROUND

The Auditor General’s Audit

The 1998 audit brought several significant problems to light. The first was the length of time that the Commission was taking to investigate complaints. Under its legislation, the Commission is required to investigate almost all complaints submitted to it. The Commission can decide, based on its investigations, to either refer the complaint to the Human Rights Tribunal Panel which decides whether or not a discriminatory practice (as defined in law) has taken place. Alternatively, the Commission can dismiss a case or decide that there will be no further proceedings.

The audit found that:

·        Between 1988 and 1997, the Commission took, on average, about 27 months to reach decisions, including 25 months to dismiss cases, and 23 months to decide that there would be no further proceedings.

·        Under a new system adopted in 1994 to speed up investigations, the Commission took about 23 months to reach about 1,170 final decisions during 1994-96. It took about three or more years to reach a decision on about 16% of cases.

·        The average time taken to complete decisions exceeded the Commission’s own standards.

The second major problem concerned the backlog of cases that had built up over time. The Commission considered a complaint to be in its backlog if it was still being actively investigated after nine months. Based on this standard, the audit found that:

·        In 1997, 48% of the Commission’s 900 open cases were in its backlog.

·        Between 1991 and 1995, the backlog ranged from about 62 to 72% of open cases.

In 1990-91, the Commission had received additional permanent funding to eliminate its backlog over a five-year period.

Several other shortcomings were identified by the audit. Auditors found that the Commission had good standards in place to guide investigations but its investigators often did not complete all the required steps. Key documentation was missing from files.

Under legislation, the Commission had the authority to establish the procedures to be followed by its investigators in the form of regulations; instead, it chose to release them as administrative standards. The Commission had not conducted periodic audits of its investigations despite its plans to do so.

The audit also found the Commission could make better use of conciliation and mediation between parties and suggested a process used by the Ontario Human Rights Commission as a model. This would allow the Commission to concentrate more resources on its investigations and speed up resolution of complaints.

In addition, the Commission needed to improve its performance reporting to Parliament significantly. In particular, it needed to report performance in light of defined standards, and objectives and numerical targets for its operations.

The Committee’s Report

Following the hearing, the Committee tabled its 21st Report with its conclusions and recommendations in the House of Commons. The Report expressed the Committee’s concern that the Commission might attempt to eliminate its backlogs and speed up the processing of complaints through increased expenditures rather than improved efficiency. This concern was addressed in the Committee’s first three recommendations that called on the Commission to identify new savings from within existing budgets to reduce delays and eliminate its backlog. No further increases in the Commission’s budget were to be made until these avenues had been fully explored.

The Committee also saw merit in using a mediation process as a means of resolving complaints quickly and recommended that the Commission proceed to implement this process as planned, and set targets for the number of cases to be dealt with in this manner. In another recommendation, the Committee called on the Commission to submit an action plan for reducing its complaints investigation and resolution processes.

There was some concern that the Commission might eliminate steps in its investigation standards as a cost-saving measure. The Committee wanted the standards retained and greater effort put into ensuring they were met. It therefore recommended that the Commission keep its key investigation standards and make sure that they were followed in each of its investigations.

Response to the Committee’s Report

The Chief Commissioner (Mrs. Falardeau-Ramsay) sent the Committee a copy of the Commission’s action plan for implementing the Auditor General’s recommendations. In an attached letter, she indicated that the Commission would concentrate on reducing its backlog and expediting its investigation processes.

Although not a response to the Committee’s recommendations per se, submission of the action plan largely satisfied the Committee’s sixth recommendation. The Chief Commissioner also wrote that the Commission had “reallocated a significant portion of [it’s] limited resources to augment [it’s] investigative capacity,” which corresponded partially to the Committee’s first recommendation. However, she added that “if the Commission is to meet its longer term goals it will require some recognition of its resource needs.”

The Committee had asked for an action plan with regard to the investigation and resolution of complaints. The Commission’s plan dealt with eliminating the backlog, reviewing complaints procedures, and amending the Canadian Human Rights Act. The later issue was the subject of the Committee’s ninth recommendation, which addressed the Government and not the Commission.

The Commission planned to eliminate its backlog by December 2000, “if possible.” Further on, the plan indicated that “current projections” showed that all cases would be resolved “earlier than planned.” A special team funded with $600,000 reallocated from other areas had been assembled to work on the backlog.

Mediation had been introduced, corresponding with the Committee’s fourth recommendation. This measure had been implemented in the form of a pilot project that would be evaluated on a regular basis. A final decision on continued use of mediation would be taken in March 2000. Training in mediation was being provided to the staff.

A detailed examination of the complaints management system was being planned, but no starting or completion dates were mentioned. An evaluation plan for all of the Commission’s programs was also being considered, but would depend on additional funding from Treasury Board.

In July 1999, the Minister of Justice responded to the Committee’s report on behalf of the Government of Canada in a letter to the Chair. Minister McLellan began by addressing the Committee’s ninth recommendation that called for a review, by a standing committee of the House of Commons, of the Canadian Human Rights Act, the Canadian Human Rights Commission, and the Human Rights Tribunal Panel. She notes that she has initiated such a review but had assigned the responsibility to an independent panel.

She then referred to the Committee’s other eight recommendations by indicating that it would be inappropriate for the Government to respond to them, given that they were addressed to the Commission, a body intended to be independent from Government. She notes, instead, that it would be “consistent with the [Review] Panel’s role to examine Recommendations one to eight.”

She concluded by writing that:

Since it is within the Review Panel’s mandate to consider the concerns raised in both the Auditor General’s Report and your Committee Report, any further action will be postponed pending the Review Panel’s Report, at which time and depending on the Panel’s recommendations, appropriate action and the next steps will be reviewed.

THE INDEPENDENT REVIEW PANEL

The Canadian Human Rights Act Review Panel, chaired by the Honourable Gérard La Forest, submitted its final report (Promoting Equality: A New Vision) in June 2000. The Government was under no obligation to respond formally to the Report and its 165 recommendations. A spokesperson for the Department of Justice indicated that the Review Panel’s report is just one source of information that the Department is considering in formulating amendments to the Canadian Human Rights Act. As of May 2002, there was no timetable to produce proposed legislative changes.

Accordingly, there had as yet been no official response by the Government or by the Canadian Human Rights Commission to the Committee’s recommendations at the time the Committee met with Mrs. Falardeau-Ramsay in May 2002.

THE COMMISSION’S PERFORMANCE REPORTS

Two of the Committee’s recommendations called on the Canadian Human Rights Commission to take specific actions and report the results in its performance reports.

Recommendation 5 called on the Commission to set numerical targets for the number of cases it would deal with through early mediation and then report progress in its performance reports. An examination of the Commission’s Performance Report for the period ending 31 March 2001 shows that it has complied. It has set a target of 40% of its cases to be dealt with in this way, and has set a further target of 75% of these cases that it wants resolved within a three-month period.

The Committee’s eighth recommendation asked the Commission to conduct regular reviews of its investigations that would look at how well it has followed its own standards in this area, and to report the results in its performance reports. A review of the Commission’s Performance Report for the period ending 31 March 2001 could find no reference to this at all, although it may have been mentioned in a very general way.

THE COMMISSION’S PLANS AND PRIORITIES, 2002

The Commission indicates that it expects to resolve up to 40% of signed complaints through mediation, and that 75% of cases referred to mediation will be settled or referred to investigation within three months. It also indicates that it refers more than 100 cases per year to conciliation and that in 2000, 135 cases were referred. The Commission reports that it will continue its efforts to ensure that 75% of all of its investigations will be completed and a decision rendered within nine months.

Time standards will be introduced to the conciliation process to reduce case processing delays. A six-month target has been established for dealing with 75% of the cases submitted to conciliation. The Commission has now adopted and made public service standards related to key steps in the complaints process and plans to implement and refine them over the planning period.

In her testimony before the Committee, Mrs. Falardeau-Ramsay gave further details about the Commission’s response to the audit and the Committee’s Report. The Commission established a special unit of investigators in 1999 to concentrate on the backlog. Regular investigators focused their efforts on the oldest cases. In 15 months, 595 cases identified for this project where dealt with. The Commission has reviewed procedures surrounding the complaints process in order to streamline it. One of the consequences of this review has been the reallocation of investigation resources to establish a separate intake unit with the goal of improving the quality and timeliness of service early in the process. Pre-investigation mediation was made a formal step in the complaint process in 2000. Training for staff has been redesigned and a new procedural manual has been developed. And lastly, the Commission meets monthly, instead of nine times a year, to deal with complaints.

On 8 August 2002, the Government announced that a new Chief Commissioner, Mary Gusella, had been appointed.

OBSERVATIONS AND RECOMMENDATIONS

The Committee welcomes the steps taken by the Commission as outlined by the former Chief Commissioner but the success of these measures can only be determined by a follow-up audit. In the interim, however, the Committee wishes to draw attention to a number of concerns that it has.

In its Report, the Committee had indicated that the Commission should improve its processing of cases and reduce its backlog through a combination of better procedures and reallocated resources. Until this was done, no new funding should be sought. The Commission has taken several measures to improve its processing of complaints. However, the Committee notes that these new measures have been accompanied by requests for additional funding and that Treasury Board has approved these requests. In her testimony, the former Chief Commissioner stressed that access to sufficient resources remained a serious problem. She claimed that the Commission, which is obliged by law to review every complaint made to it, does not have — and in fact has never had — enough funding to deal with its annual caseload. In light of this, even if all of the inefficiencies are squeezed out of the system, the backlog will never be reduced let alone eliminated.

The Committee’s second concern is the length of time it is taking the Government to respond to the Review Panel’s recommendations and to propose changes to the Canadian Human Rights Act.

The former Chief Commissioner repeatedly told the Committee that administrative streamlining could only accomplish so much and that Commission’s mandate needed to be modernized. This can only be done through legislative change. As she stated, the current Canadian Human Rights Act “is yesterday’s solution to today’s problems.”

The Committee agrees with the former Chief Commissioner and recommends:

RECOMMENDATION 1

That the Government expedite its response to the final report of the Canadian Human Rights Act Review Panel and table that response in the House of Commons and that there be no ad hoc funding to the Canadian Human Rights Commission or the Canadian Human Rights Tribunal commencing in the fiscal year 2003-04 and that all funding be allocated exclusively through the Main and Supplementary Estimates.

RECOMMENDATION 2

That concurrent with the tabling of its response, the Government announce a target date for bringing in amendments to the Canadian Human Rights Act.

Mrs. Falardeau-Ramsay told the Committee that:

Last year, once again, [the Commission] approached the Treasury Board for relief. And ad hoc funding has been approved. Over the next four years, this funding will help us deal with our case overload but these are not permanent resources that can be applied to a permanent solution.

This is an absolutely unacceptable situation. The Committee completely rejects the use of ad hoc funding since it violates the fundamental rules of Parliament of voting Supply. It notes, as well, that similar measures have been tried in the past and have failed in every possible way to resolve the Commission’s problems. It is quite possible that legislative change will affect the Commission’s resource requirements by either narrowing or expanding its mandate. The Committee strongly believes that regardless of the changes that are made, a new funding formula for the Commission must be devised in order to ensure that it has the resources it needs to fulfil its mandate and that ad hoc funding be eliminated. The Committee therefore recommends:

RECOMMENDATION 3

That the Government undertake a thorough review of the resource needs of the Canadian Human Rights Commission. This review must take into account any changes to the Canadian Human Rights Act, and its conclusions along with a proposed new funding formula must be tabled in the House along with the Government’s response to the Review Panel report.

In its initial Report, the Committee expressed several concerns about the use of resources within the Commission. While it appeared that funding might not have been in line with the Commission’s workload, it was also evident that the Commission needed to better manage resources already available to it. It is in this respect that the Committee questions the decision to award performance bonuses to executive-level officials at the Commission at a time when resources were scarce and when there were reports of turmoil within the organization. An attempt to have Mrs. Falardeau-Ramsay reveal the criteria used to assess performance and the rationale behind awarding performance bonuses at an inopportune moment did not meet with success. The Committee firmly believes that this aspect of the Commission’s operations must be made more transparent in order to enhance accountability. Accordingly, the Committee recommends:

RECOMMENDATION 4

That the Canadian Human Rights Commission provide the criteria used to measure the performance of its executive (EX) group, an aggregate level assessment of that performance, the number and percentage of executives receiving performance pay, and the total amount paid in performance bonuses, in its annual performance reports beginning with the Report for the period ended 31 March 2003.

CONCLUSION

The strongest point made by the report on the Auditor General’s 1998 audit was that those involved in the complaints process — complainants and employers alike — were the ones having to bear the biggest burden resulting from inefficiencies in the system. Long waits, uncertainty, and the ill will generated by unresolved disputes were taking a great toll on those the Human Rights Commission was meant to assist.

The recommendations made by the Auditor General, this Committee, and the Review Panel were all meant to help resolve the root problems that were creating delays and backlogs in the complaints processing system. More than two years have elapsed and despite some improvements, the fundamental problems still remain. This is particularly frustrating because solutions have been brought forward. The time for waiting has ended and the time to make meaningful change has come.

Pursuant to Standing Order 109, the Committee requests that the Government table a comprehensive response to this Report.

A copy of the relevant Minutes of Proceedings (Meeting Nos. 7 and 8) is tabled.

Respectfully submitted,

JOHN WILLIAMS, M.P.

Chair